Dismissed

Joginder Singh v. Subhash Chander & Anr.

Punjab & Haryana HC3 Aug 2010RSA/2843/2010

Case brief

AI extract

What is this about?

In this second appeal regarding possession of a suit property, a single judge held that the appellant could not claim ownership through adverse possession as his possession was permissive based on an agreement to sell. Furthermore, Section 53A of the Transfer of Property Act was unavailable as the appellant failed to demonstrate he was always ready to perform and file for specific performance. The

What did the court decide?

Application for condonation of delay dismissed; Second appeal dismissed on merits and as being time-barred.

Joginder Singh Vs Subhash Chander & Anr. — Landlord and Tenant | Punjab & Haryana HC (2010)

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RSA No.2843 of 2010(O & M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2843 of 2010(O & M) Date of Decision: 03.08.2010

Joginder Singh

.……Appellant

Versus

Subhash Chander and another ……Respondents

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Coram:HON’BLE MR. JUSTICE L. N. MITTAL.

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Present: Mr. S. K. Arora, Advocate for the appellant.

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L. N. MITTAL, J (ORAL) CM No.8579-C of 2010

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This is application by appellant-Joginder Singh for condonation of delay of 1237 days in filing the instant second appeal. It is alleged that the applicant-appellant after obtaining certified copies of Judgment and decree dated 13.12.2006 of the Lower Appellate Court, engaged Mr. P.P.S. Duggal, Advocate to file regular second appeal against the same and handedover certified copies of judgments and decrees of both the Courts below along with other necessary documents to Mr. Duggal within the limitation period of 90 days and also paid the settled fee to him. About 1 ½ months thereafter, Mr. Duggal informed the applicant-appellant that the appeal stood filed and admitted by this Court. Believing the same, the applicant-appellant did not obtain copy of admission order of the appeal, since the applicant-appellant was in possession of the suit property. In second week of May, 2010, the applicant-appellant learnt that warrant of possession of the suit property had been issued

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RSA No.2843 of 2010(O & M) -2-

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in execution petition filed by respondent No.1-plaintiff for execution of decree of the lower appellate Court. Thereupon the applicant contacted Mr. Duggal for filing application for stay of execution proceedings. Thereupon Mr. Duggal told the applicant-appellant that his file had been lost and appeal had not been filed and he (Mr. Duggal) inadvertently told the applicant-appellant about the admission of the appeal. Thereafter the applicant-appellant again obtained certified copies of judgments and decrees of the Courts below and filed the instant second appeal.

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I have heard learned counsel for the applicant-appellant and perused the case file.

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The version stated by the applicant-appellant in the application for condonation of long delay of 1237 days i.e more than 40 months cannot be believed. Lower Appellate Court had granted decree for possession of the suit property in favour of plaintiffrespondent No.1. If defendant No.1-appellant had filed the second appeal immediately thereafter within limitation period, he would also have made efforts to obtain stay of execution of the decree of the lower appellate Court because in the absence of prayer for such stay, filing of the appeal would not have been of much help to the applicant-appellant because the plaintiff-respondent No.1 would have executed the decree. However, admittedly applicant-appellant did not file any stay application, when he allegedly filed second appeal through Mr. Duggal. It is thus apparent that this version has been concocted to seek condonation of delay of more than 40 months.

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Learned counsel for the applicant-appellant states that the applicant-appellant did not make any complaint against Mr.

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RSA No.2843 of 2010(O & M)

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Duggal for not filing the second appeal and for wrongly informing the applicant-appellant that the appeal had been filed and had also been admitted. This circumstance further strengthens the conclusion that the version stated by the applicant-appellant in the application is a pure concoction.

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It is also worth mentioning that even after applicantappellant allegedly learnt in second week of May, 2010 about nonfiling of second appeal by Mr. Duggal, even then the applicantappellant did not take prompt steps to file the instant second appeal. It was filed on 02.08.2010 i.e after delay of another more than 2 ½ months after the alleged knowledge of non-filing of the second appeal earlier. The instant second appeal has now been preferred to thwart the execution proceedings initiated by plaintiff-respondent No.1, who has been successful in obtaining warrant of possession 3½ years after the passing of the decree in his favour by the lower appellate Court. Courts do adopt liberal approach in the matter of condonation of delay. However, a litigant cannot be allowed to abuse or misuse the said liberal approach of the Courts. Long delay of more than 40 months cannot be condoned on the specious ground pleaded by the applicant-appellant in the application. Liberal approach of the Court cannot be stretched to an extent as to make the law of limitation redundant and futile. The applicant-appellant has miserably failed to make out a case for condonation of delay of 1237 days in filing the appeal. The application is accordingly dismissed.

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Main Appeal

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Since the appeal is barred by limitation and application for

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RSA No.2843 of 2010(O & M)

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condonation of delay in filing the appeal has been dismissed, the appeal is liable to be dismissed as time barred.

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However, even on merits, the appellant has not made out a case for interference. Respondent No.1 filed suit against appellant and his brother Mohinder Singh proforma respondent No.2 for possession of the suit property alleging that the plaintiff agreed to sell the suit plot measuring 60' X 40' to defendant No.1 for Rs.22000/vide agreement dated 17.02.1988 and received Rs.18500/- as earnest money. Sale deed was to be executed upto 30.04.1988. Vide supplementary agreement dated 19.07.1989, the plaintiff received further amount of Rs.3000/- and date for execution of sale deed was extended upto 18.01.1990. However, defendant No.1 never got executed the sale deed as per agreements nor filed any suit for specific performance thereof. On the other hand, defendant No.1 with the help of his brother defendant No.2 took forcible possession of the suit property about one year before filing of the suit and raised construction thereon. The plaintiff, therefore, filed suit for possession of the suit plot.

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Defendants inter alia pleaded that initially defendant No.1 agreed to purchase half portion of the suit plot vide agreement dated 16.11.1987 for Rs.10000/- and paid Rs.2,500/- to the plaintiff at the time of execution of said agreement. Sale deed was to be executed upto 20.05.1988. However, on 25.01.1988, plaintiff being in need of money was paid a sum of Rs.4000/- by defendant No.1 for which writing was made on the back of the agreement. Thereafter, plaintiff executed supplementary agreement dated 17.02.1988 regarding remaining half portion of the suit plot for total consideration of

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Rs.22000/- and further amount of Rs.12000/- was paid to the plaintiff and date for sale deed was fixed as 30.04.1988. The plaintiff also executed supplementary agreement dated 19.07.1989 and received further amount of Rs.3000/- and sale deed was agreed to be executed upto 18.01.1990. Defendant No.1 is in possession of suit plot since 25.01.1989 and has raised construction thereon. Defendant No.1 is in open, hostile and adverse possession of the suit plot and has, therefore, become its owner by adverse possession.

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Learned Civil Judge (Junior Division), Ferozepur vide judgment and decree 07.06.2006 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by by learned Additional District Judge, Ferozepur vide judgment and decree dated 13.12.2006 and thereby suit filed by the plaintiff has been decreed. Feeling aggrieved, defendant No.1 has preferred the instant second appeal.

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I have heard learned counsel for the appellant and perused the case file.

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Admittedly plaintiff is owner of the suit plot. Admittedly pursuant to agreement to sell between plaintiff and defendant No.1, no registered sale deed has yet been executed in favour of appellantdefendant No.1. Consequently, title of suit property has not passed in favour of the appellant, and plaintiff continues to be owner of the suit plot. The plaintiff has filed suit for possession of the suit plot on the basis of title. The suit has, therefore, been rightly decreed by the lower appellate Court.

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Defendant No.1-appellant asserted his ownership over the suit plot on the basis of adverse possession. However, the

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RSA No.2843 of 2010(O & M)

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question of adverse possession of the appellant over the suit plot does not arise, when according to his own version, he was delivered possession of the suit plot pursuant to agreements to sell. Consequently, possession of defendant No.1-appellant according to his own version was permissive and not adverse. So the question of the appellant becoming owner of the suit plot by adverse possession does not arise.

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Defendant No.1-appellant is also not entitled to benefit of Section 53A of the Transfer of Property Act. In the first instance, even the appellant himself has not claimed benefit of said provision. Secondly, the appellant has not pleaded relevant facts to avail the benefit of the said statutory provision. One of the conditions for availing benefit of the said statutory provision is that the prospective vendee should have always been ready and willing to perform his part of the contract. In the instant case, defendant No.1-appellant has not even pleaded that he was always ready and willing to perform his part of the contract. Merely because the appellant had paid Rs.21,500/- out of consideration of Rs.22000/-, it cannot be said that defendant No.1 had always been ready and willing to perform his part of the contract. On the other hand, defendant No.1 did not file any suit for specific performance of the agreements for more than 12 years till the plaintiff filed the instant suit. Defendant No.1 never sought specific performance of the agreements nor pleaded even in the written statement in the instant suit that he was ready and willing to do so or that even now he is ready and willing to get the sale deed executed in terms of the agreements. Consequently, appellant is also not entitled to benefit of Section 53A of the Transfer of Property

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RSA No.2843 of 2010(O & M)

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Act.

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For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed.

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03.08.2010. A. Kaundal

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( L. N. MITTAL ) JUDGE

Joginder Singh v. Subhash Chander & Anr.

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Joginder Singh v. Subhash Chander & Anr.

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